Nelson v Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 is a new BC human rights case where an employer was liable in a substantial amount of damages for misgendering an employee.
This case is interesting because there are not many cases that have tackled gender pronouns, and because the pain and suffering damages award is at the higher end of what we typically see in human rights cases. The case also has an unusual component, requiring certain actions from the employer to prevent similar discrimination in the future.
This is a B.C. case, but it would be persuasive authority in Alberta Human Rights law as well.
Facts
Most of the facts in this case were succinctly summarized by the BC Human Rights Tribunal as follows:
[1] Jessie Nelson is a non-binary, gender fluid, transgender person who uses they/them pronouns. They worked as a server for Buono Osteria, a restaurant run by the respondents Michael Buono and Ryan Kingsberry. The respondent Brian Gobelle was the bar manager. During their employment, Mr. Gobelle persistently referred to Jessie Nelson with she/her pronouns and with gendered nicknames like “sweetheart”, “honey”, and “pinky”. Jessie Nelson asked Mr. Gobelle to stop, and he did not. They asked management to intervene and were told to wait. On their final day of work, Jessie Nelson again tried to speak to Mr. Gobelle about this issue and the discussion grew heated. Four days later, they were fired. Pressed to explain the termination, Mr. Kingsberry told Jessie Nelson that they had simply come on “too strong too fast” and were too “militant”.
Other pertinent facts include that, most employees and management were making an effort to refer to the complainant by their personal pronouns. These employees and management made mistakes at times, which the complainant was accepting of. The primary dispute was around the actions of Mr. Gobelle. The termination of employment occurred during the employee’s probationary period.
Analysis / Conclusion
The BCHRT’s analysis started out by making it clear that it is discriminatory to refer to an employee by other than their personal pronouns:
[80] All employees have the right to a workplace free of discrimination. Trans employees are entitled to recognition of, and respect for, their gender identity and expression. This begins with using their names and pronouns correctly. This is not an ‘accommodation’, it is a basic obligation that every person holds towards people in their employment […]
The human rights tribunal found that the actions of the manager towards Jessie Nelson were discriminatory, as follows:
[81] I am satisfied that Mr. Gobelle’s conduct towards Jessie Nelson amounted to discrimination. He was told, by his managers and directly by Jessie Nelson, that they are trans, non-binary, and use they/them pronouns. They are not a woman. And yet, he persisted in referring to them with female pronouns and gendered nicknames. […]
The human rights tribunal then went on to explain how the employer’s attempts to handle this discriminatory situation fell short of its responsibilities in human rights, as follows:
[…] [the Employer] did not tell Jessie Nelson that the employer intended to ‘mediate’ between them and Mr. Gobelle. Accepting for the moment that this was indeed [the Employer’s] intention, and that it was well-meaning, the idea was misguided. This was not a conflict between two employees who simply held different opinions or did not like each other. This was a matter of discrimination. Given that the employer had accepted that Jessie Nelson’s complaints were valid, all that remained was to correct Mr. Gobelle’s behaviour. This was the employer’s responsibility and not Jessie Nelson’s. The employer is responsible for ensuring a healthy work environment […] [underline added]
[…]
Significantly, the outcome of the employer’s approach was not to restore a healthy work environment for Jessie Nelson. To the contrary, it led Jessie Nelson to conclude they would have to address the issue themselves – at the eventual cost of their employment. The decision to terminate Jessie Nelson’s employment must be considered as part of the employer’s response to their complaints, and bolsters my finding that the employer’s response fell short of what is required by the Code.
In the result, the BCHRT awarded Jessie Nelson $30,000 in general damages for pain and suffering. This is at the high end of damages for pain and suffering in human rights.
The human rights tribunal also made an order requiring the restaurant to create a policy requiring employees to be addressed by their personal pronouns, and to require the managers to be trained in that policy.
My Take
I like the reasoning in this case because it cuts straight to a common misunderstanding of human rights. People very often confuse the notion of their right to have an opinion with their right to do whatever they want. The manager in this case obviously had an opinion that Jesse Nelson’s non-binary gender was nonsense. He was (and is) entitled to that opinion. What he was not entitled to do was to deliberately address Jesse Nelson using pronouns they asked him not to use. That is discrimination.
In addition to noting that the pain and suffering damages were high in this case, I note that requiring the employer to create a policy and undergo training is unusual: it is common to require payment of money, or to require someone to stop doing something, but requiring them to take a positive act (other than paying money) is not common.
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